On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 93-cv-0-00101J).

Before: Mansmann, Cowen and Lewis Circuit Judges.

Author: Cowen

Cowen, Circuit Judge :

Plaintiffs, 169 former employees of defendant Warnaco, Inc. ("Warnaco"), appeal from an order of the district court that granted summary judgment in favor of Warnaco and denied plaintiffs' cross-motion for partial summary judgment as to liability on plaintiffs' claims for termination benefits pursuant to an employee benefit plan. Plaintiffs claim on appeal that the district court erred by concluding that a complete rescission of a welfare plan does not implicate the amendment procedures required by section 402(b)(3) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1102(b)(3). Because we conclude that a complete rescission of a benefit plan does implicate the requirements of section 402(b)(3), we will reverse the order of the district court and provide certain directions upon remand.

Plaintiffs also assert on appeal that the district court erred by: (1) failing to void a change to Warnaco's employee benefits plan that eliminated the plan's termination allowance policy where the plaintiffs did not receive adequate notice of this change; and (2) concluding that no genuine issue of material fact existed as to whether Warnaco intentionally misled the plaintiffs by not timely disclosing the elimination of the termination allowance policy. Subsequent to the district court's decision in this matter, and while this appeal was pending, the Supreme Court decided the case of Curtiss-Wright Corp. v. Schoonejongen, 131 L. Ed. 2d 94, U.S. , 115 S. Ct. 1223 (1995). In light of the Supreme Court's decision in that case, and because we conclude that there are genuine issues of material fact in dispute, we will remand this matter to the district court for further findings of fact.

I.

Plaintiffs worked in production positions at Warnaco's Altoona, Pennsylvania plant, where Warnaco manufactured various types of fashion apparel. In January of 1988, Warnaco published an "Employee Handbook" (the "1988 Handbook") and distributed it to all of its employees, including the plaintiffs. The 1988 Handbook described the company's termination allowance policy as follows:

Warnaco hopes that economic circumstances never makes [sic] it necessary to eliminate any jobs within the Company. Should this unfortunate circumstance occur, however, you may be eligible for a termination allowance. For example, you may be eligible if Warnaco eliminated your job to achieve long-term savings to the Company. A condition of eligibility is that the employee sign an agreement to release Warnaco from liability for employment-related matters.

In some cases, loss of employment will not make you eligible for a termination allowance. For example, you will not be entitled to an allowance if termination of your employment occurs as a result of death, retirement, resignation, or discharge for misconduct or poor performance. Entitlement to a termination allowance may also be affected if you receive any other termination or disability pay. Furthermore, you will not be entitled to a termination allowance if, at or about the time of termination of your employment with Warnaco Inc., you are offered employment with Warnaco Inc. or any affiliate or subsidiary of Warnaco Inc., or any purchaser of Warnaco assets, at a salary not substantially less than your last current salary at Warnaco Inc. You will also not be entitled to a termination allowance if, prior to termination of your employment, management has altered or rescinded this termination allowance policy.

Eligible employees are entitled to receive a termination allowance of one week pay for each completed year of service, with a minimum of termination allowance of two weeks.

App. 116a-17a (emphasis added).

In a memorandum dated December 26, 1990, Stanley Silverstein, the Secretary and Assistant General Counsel of Warnaco, stated that, "effective immediately, the Termination Allowance Policy referred to in the Warnaco Employee Handbook, has been rescinded. Employees separated from the employment of Warnaco on and after December 19, 1990 will not be eligible for any termination allowance." App. at 120a. This memorandum also directed that meetings be scheduled to communicate this change to all employees. Id.

Plaintiffs contend that while one of Warnaco's vice presidents met with employees at the Duncanville, Pennsylvania warehouse and advised them of the rescission of the termination allowance policy, no such meeting was ever held with employees at the Altoona plant. Further, plaintiff Francis Mentzer avers that Warnaco did not give written or oral notice that the termination allowance policy was being rescinded until a meeting was held on January 22, 1992 to discuss issues raised by the closing of the Altoona plant. At that meeting, plaintiffs assert, employees questioned Warnaco Vice President Richard Mitchell as to whether they would be receiving the severance benefits provided for in the 1988 Handbook, and he informed them that no such benefits would be paid.

Warnaco claims, and plaintiffs do not dispute, that sometime in 1991, it published an updated Employee Handbook (the "1991 Handbook") reflecting the elimination of the termination allowance. Further, it is undisputed that Warnaco President and Chief Executive Officer Linda Wachner, by letter dated January 16, 1991, advised employees about unfavorable economic times, and stated, "it has been necessary for us to take certain measures to protect the 11,800 members of our Warnaco family. While such things as a salary freeze and changes in our severance policy are difficult, they represent the kind and quality of tapestry that we must weave to strengthen our company." App. at 155a (emphasis added). Plaintiff Mentzer acknowledges receipt of this letter, which he describes as "vague," and without reference to any rescission of the termination allowance policy.

No reference is made in the 1991 Handbook, or elsewhere in the record, to the procedure that was followed in eliminating the termination allowance or the precise date such action was accomplished. More important, while plaintiffs concede that Warnaco began distributing the 1991 Handbook to new employees at other locations in 1991, plaintiffs allege that no employees at the Altoona plant ever received a copy of this updated handbook. Warnaco failed to produce any evidence that it distributed the 1991 Handbook to employees at the Altoona plant.

Warnaco shut down its Altoona plant in early 1991, and terminated the plaintiff employees at different times from October 1991 through January 1992. In light of Warnaco's refusal to pay severance benefits, the plaintiffs filed suit against Warnaco in the United States District Court for the Western District of Pennsylvania alleging violations of ERISA and seeking the benefits due to them under the 1988 Handbook, interest, and attorney's fees. Warnaco moved for summary judgment and plaintiffs cross-moved for partial summary judgment as to the issue of liability. The district court granted summary judgment in favor of Warnaco and denied the plaintiffs' cross-motion. This appeal followed.

Plaintiffs relied heavily on our decision in Schoonejongen v. Curtiss-Wright Corporation, 18 F.3d 1034 (3d Cir. 1994), rev'd, 131 L. Ed. 2d 94, U.S. , 115 S. Ct. 1223 (1995) in presenting their appeal. Following the Supreme Court's decision in that matter, which reversed our prior panel decision, we ordered supplemental briefing on the question of the effect of the Schoonejongen case on the instant appeal. We recognize, of course, that the district court did not have the benefit of the Supreme Court's decision in Schoonejongen for purposes of its decision concerning the granting of summary judgment.

II.

The district court exercised jurisdiction in this matter pursuant to 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

III.

The plaintiffs' first claim is that the district court erred by concluding that a complete rescission of a welfare plan does not implicate the amendment procedures required by section 402(b)(3) of ERISA. Plaintiffs assert that it is illogical to suggest that while changes to a benefit plan which reduce benefits must follow the procedure outlined in section 402(b)(3), changes that totally eliminate plan benefits do not require such a procedure. Further, plaintiffs assert that the district court misinterpreted dicta in Schoonejongen, 18 F.3d at 1040, in reaching its erroneous Conclusion.

We exercise plenary review over the district court's rulings concerning statutory construction. United States v. Barel, 939 F.2d 26, 31 (3d Cir. 1991). Section 402(b)(3) of ERISA states that every employee benefit plan shall "provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." 29 U.S.C. § 1102(b)(3) (1988). Concededly, nothing in the language of this ERISA section indicates that an employee benefit plan must provide a procedure for terminating the plan. Nevertheless, as the district court recognized, it is anomalous to suggest that ERISA offers employees protection from mere changes in employee benefit plans, but does not afford protection against wholesale elimination of benefits. Ackerman v. Warnaco, No. 93-101J, slip. op. at 9 (W.D. Pa. August 8, 1994). Further, the view that termination is categorically different from an amendment for purposes of 402(b)(3) is at odds with the tenor of a previous decision of our court where we stated that, "ERISA generally allows employers to amend or terminate welfare benefit plans at will so long as the procedure followed is consistent with the plan and the Act." Deibler v. United Food & Commercial Workers' Local Union 23, 973 F.2d 206, 210 (3d Cir. 1992) (emphasis added). Accordingly, we agree with the plaintiffs that the requirements of section 402(b)(3) apply to plan terminations as well as plan amendments.*fn1

Warnaco asserts, and the district court agreed, that language in our previous decision in Schoonejongen supports the view that a complete rescission of an employee benefit plan does not implicate the requirements of section 402(b)(3). Warnaco and the district court point to a passage in that decision where we stated:

Alternatively, [the employer] suggests that we should sustain the November 1983 announcement as a termination of its entire welfare benefit plan and the institution of a new plan without benefits for the retirees of the Wood-Ridge plant. It points out that it reserved the right to terminate its plan as well as amend it and that § 402(b)(3)'s requirement of a plan provision specifying a process for amendments does not apply to plan terminations. Because [the employer] could have terminated its entire plan without implicating § 402(b)(3) and could then have instituted a new plan without benefits for the Wood-Ridge retirees, [the employer] insists that it should be held to have accomplished the same result in "one step rather than two." We are unpersuaded.

Schoonejongen, 18 F.3d at 1040-41 (emphasis added). According to Warnaco and the district court, this passage indicates that a complete rescission of a welfare benefit plan does not implicate the requirements of section 402(b)(3).

We are unpersuaded by such reasoning. As a preliminary matter, our decision in Schoonejongen has been reversed by the United States Supreme Court, albeit not on the precise issue discussed in this passage. Schoonejongen, U.S. at , 115 S. Ct. at 1231 (reversing the prior decision of our Court). More important, however, in this passage we were merely describing an argument of the employer. We were not setting forth a rule of law or even providing persuasive dicta. Because it is improper to give precedential weight to a mere characterization of a party's argument, we find that Warnaco's argument lacks merit. Accordingly, we will reverse the order of the district court granting summary judgment in favor of Warnaco and remand for further proceedings consistent with this opinion.

On remand the district court must determine whether Warnaco complied with section 402(b)(3). We pause briefly to provide certain directions. The plaintiffs assert that Warnaco failed to comply with section 402(b)(3) because it failed to identify specifically the entity with the authority to alter plan benefits. Warnaco counters that it expressly reserved the right of "the management" to alter or rescind the termination allowance policy, and that "the management" is sufficiently specific to comply with section 402(b)(3).

In our previous decision in Schoonejongen, we determined that designating "the Company" as the entity with authority to amend a benefits plan was not sufficiently specific to comply with section 402(b)(3). Schoonejongen, 18 F.3d at 1039. The Supreme Court granted certiorari on this precise issue, however, and determined that designating "the Company" as the entity with authority to alter the plan satisfied the requirements of section 402(b)(3). Schoonejongen, U.S. at , 115 S. Ct. at 1228-29. The Court reasoned that designating "the Company" is sufficiently specific because principles of corporate law provide a ready-made set of rules for determining who has authority to make decisions on behalf of the company. Id. at , 115 S. Ct. at 1229. The Court also explained that the literal terms of section 402(b)(3) are ultimately indifferent to the level of detail in the identification procedure. Id. Although it is a close question, in light of the Supreme Court's decision, we conclude that designating "the management" as the entity with authority to alter the plan satisfies the requirements of section 402(b)(3).*fn2 Accordingly, on remand the issue to be determined is whether Warnaco's valid amendment procedure was complied with in this case. The answer will depend on a fact-intensive inquiry into whether Warnaco's management actually approved the new plan provision rescinding the termination allowance policy.

IV.

Plaintiffs next argue that even if the rescission to the termination allowance policy was properly adopted, the district court erred by failing to void this rescission where the plaintiffs' did not receive adequate notice of the change. Plaintiffs assert that each affected employee is entitled to written notice of such rescission. According to plaintiffs, the 1991 Handbook evidencing the deletion of the termination allowance policy was not distributed at the Altoona plant at which they worked, and meetings were not held at the Altoona plant to advise the employees of this change.

Warnaco counters that ERISA does not require written notice to each affected employee. Warnaco argues that meetings were held for most of Warnaco's 11,800 employees, and that one such meeting was conducted at the nearby Duncanville plant. Warnaco also argues that the employees at the Altoona plant received a letter from Linda Wachner, Warnaco's CEO, explaining that the company was experiencing economic difficulties and referencing changes in the severance policy. Finally, Warnaco asserts that whether or not plaintiffs received notice of the termination allowance, their claim for benefits is barred because a procedural defect like defective notice does not give rise to a substantive remedy under ERISA.

The district court based its decision on Warnaco's final contention, that even if the plaintiffs did not receive notice, this procedural defect does not give rise to a substantive remedy. Relying on Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1170 (3d Cir. 1990) and Berger v. Edgewater Steel Co., 911 F.2d 911, 921 (3d Cir. 1990), cert. denied, 499 U.S. 920, 111 S. Ct. 1310, 113 L. Ed. 2d 244 (1991), the court determined that the caselaw of this circuit teaches that substantive remedies are generally not available for such violations. Ackerman, No. 93-101J, slip. at 10. The court explained that while monetary relief is sometimes available in "exceptional cases" or if "extraordinary circumstances" are present, there was insufficient evidence of such circumstances in this case to warrant relief. Id. at 10-11.

In Schoonejongen, the Supreme Court described a number of ERISA's core requirements and goals. U.S. at , 115 S. Ct. at 1230-31. As the Court recognized in that case, ERISA requires that "'every employee benefit plan shall be established and maintained pursuant to a written instrument.'" Id. at 1230 (quoting 29 U.S.C. § 1102(a)(1)). Further, as the Court explained, a written instrument is required to enable employees to determine exactly what his or her rights are under the plan. Id. (citing H.R. Conf. Rep. No. 1280, 93rd Cong., 2d Sess. 297 (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 5077-78). Finally, as the Court noted, ERISA gives effect to the written plan scheme through a comprehensive set of reporting and disclosure requirements embodied in 29 U.S.C. §§ 1021-31. Id. Certain of these reporting and disclosure requirements are at issue in this case.

ERISA requires that if there is a modification or change in a summary plan description,*fn3 a summary of this modification or change must be furnished to each plan participant not later than 210 days after the end of the plan year in which the change is adopted. 29 U.S.C. § 1024(b)(1) (1988). In addition, and "more important," ERISA requires that every plan administrator make available for inspection in the administrator's "'principal office' and other designated locations," a set of currently operative governing plan documents, which "necessarily includes any new, bona fide amendments." Schoonejongen, U.S. at , 115 S. Ct. at 1231 (citing 29 U.S.C. § 1024(b)(2)).*fn4

Warnaco acknowledges that not all of its employees received notice of the rescission of the termination allowance policy within 210 days of the end of the plan year in which the change was adopted.*fn5 Warnaco, however, suggests that a copy of the amended handbook with the rescission of the termination allowance policy was on file in the principal office of the plan administrator. Unfortunately, Warnaco cannot point to convincing record support for its claim that the 1991 Handbook was on file in the plan administrator's principal office, and the plaintiffs assert that this is a disputed issue of material fact.*fn6

We have repeatedly held that under ordinary circumstances defects in fulfilling the reporting and disclosure requirements of ERISA do not give rise to a substantive remedy other than that provided for in section 502(a)(1)(A) of that Act.*fn7 See Hozier, 908 F.2d at 1169-70 (declining to find an implied remedy for a violation of ERISA's reporting and disclosure requirements); Berger, 911 F.2d at 921 ("This Circuit has apparently rejected the reasoning that substantive remedies, such as the severance pay the Employees seek on appeal, are available for violations of ERISA's procedural requirements."); see also Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir.) (declining to find a basis for equitable relief absent "extraordinary circumstances"), cert. denied, 501 U.S. 1232, 111 S. Ct. 2856, 115 L. Ed. 2d 1023 (1991). Thus, even if as the result of Warnaco's negligence a copy of the 1991 Handbook was not available for plaintiffs' review in the principal office of the plan administrator, and the employees did not receive written notice of the termination of their severance benefits within 210 days of the end of the plan year in which this change was adopted, we are unable to conclude that ERISA provides the remedy that plaintiffs seek. Plaintiffs are limited to their statutory remedies under such facts.

V.

The plaintiffs' final contention is that the district court erred in determining that no genuine issue of material fact existed as to whether Warnaco intentionally misled the plaintiffs by not timely disclosing the elimination of the termination allowance policy. According to the plaintiffs, even though substantive remedies are generally not available for an employer's violation of ERISA's reporting and disclosure violations, the remedy of striking a plan amendment is available where an employer is guilty of bad faith or active concealment with respect to a substantive plan change. The plaintiffs point to the fact that meetings that were scheduled to inform the plaintiffs of the change in policy were never held, the fact that the 1991 Handbook was never distributed to the Altoona employees, and the fact that a letter of January 16, 1991 from Warnaco's CEO spoke of "changes" in (rather than the elimination of) the severance plan, to support their view that Warnaco was actively concealing the elimination of the severance policy in order to induce workers to stay at their jobs.

As we discussed above, substantive remedies are generally not available for violations of ERISA's reporting and disclosure requirements. See Hozier, 908 F.2d at 1169-70; Berger, 911 F.2d at 921. We have, however, recognized the possibility of a remedy where the plaintiff can demonstrate the presence of "extraordinary circumstances." See Gridley, 924 F.2d at 1319. Such circumstances include situations where the employer has acted in bad faith, or has actively concealed a change in the benefit plan, and the covered employees have been substantively harmed by virtue of the employer's actions. See Berger, 911 F.2d at 920-21; Blau v. Del Monte Corp., 748 F.2d 1348, 1353-54 (9th Cir. 1984), cert. denied, 474 U.S. 865, 106 S. Ct. 183, 88 L. Ed. 2d 152 (1985). Further, we have acknowledged that reporting and disclosure violations can "wreak especially substantial harm" in the context of a dispute over the validity of a plan alteration. Hozier, 908 F.2d at 1168-69 n.15. The district court concluded that the record contains "no evidence of the narrow 'extraordinary circumstances,' which must be present for substantive relief to be available." Ackerman, 93-101J, slip op. at 11. We disagree.

At oral argument, Warnaco described its failure to distribute the 1991 Handbook to affected employees at the Altoona plant, its failure to hold scheduled meetings with Altoona employees, and its issuance of a letter concerning "changes" in the severance policy, as mere bureaucratic "bungling." While we do not rule out the possibility that administrative error accounted for Warnaco's omissions, we conclude that a reasonable fact finder could infer from these facts and from the plaintiffs' evidence regarding the employment climate at the Altoona plant that Warnaco actively concealed the change to its severance policy in order to prevent employees at the Altoona plant from leaving. Under such circumstances, we conclude that it would be inappropriate to deprive the plaintiffs of the remedy of voiding Warnaco's rescission of the termination allowance policy.*fn8 Accordingly, we will reverse the district court's grant of summary judgment in favor of Warnaco, and remand for further findings on this disputed factual issue.*fn9

Conclusion

Because we find that a complete rescission of a benefit plan does implicate the requirements of section 402(b)(3) of ERISA, we will reverse the order of the district court. Upon remand the district court must determine whether Warnaco complied with its otherwise valid procedure for altering plan benefits. With respect to Warnaco's alleged reporting and disclosure violations, we will reverse and remand this case for a determination as to whether Warnaco acted in bad faith, or actively concealed the rescission of the termination allowance policy.

Disposition

Reversed and Remanded

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